Public Bill Committee

(Afternoon)

[Ann Winterton in the Chair]

Clause 6

Approval of local spending plans

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Ann Winterton: I remind the Committee that with this we are taking the following amendments: No. 60, in clause 11, page 7, line 10, at end insert—
‘(11) After that subsection, insert—
“( ) No person can act as a responsible clinician unless he is capable of providing objective medical expertise of mental disorder.
( ) Objective medical expertise of mental disorder shall have the same meaning as in Winterwerp v The Netherlands (1979-80) 2 EHRR 387.”’.
No. 61, in clause 13, page 8, line 45, at end insert—
‘( ) After that subsection, insert—
“( ) No person can act as a responsible clinician unless he is capable of providing objective medical expertise of mental disorder.
( ) Objective medical expertise of mental disorder shall have the same meaning as in Winterwerp v The Netherlands (1979-80) 2 EHRR 387.”’.
Government amendments Nos. 22, 24, 25 and 28.
It would be helpful if, at the start of Committee proceedings, everybody were to check their mobile phones and other devices and switch them off or turn them to silent.

Tim Loughton: Welcome, Lady Winterton—[Interruption.]. I am not sure where I was interrupted, so I thought that I might go back to the beginning and start again. I think that I was just about to explain the case of Winterwerp v. The Netherlands 1979, which is the basis of the two amendments to which I spoke for most of the morning. They would amend clauses that we are not debating at the moment, but that is the way in which things work.
Winterwerp v. The Netherlands 1979 produced an important European judgment on mental health law. The ruling was that, except in an emergency, the detention of a person of unsound mind will be lawful only if, first, the person detained is reliably shown tobe of unsound mind—that is, by objective medical experts—secondly, the relevant mental disorder is of a kind or degree warranting compulsory confinement, and thirdly, there is a persistence of such a disorder to justify continuing detention.
 I was talking about the position of the Joint Committee on Human Rights. It asked the Government to explain further their view that medical expertise need not necessarily involve a doctor. I am aware that the Department of Health takes the view that the phrase “medical expertise”, as referred to by Winterwerp, was used in the wider sense and the Court was not seeking to lay down which sort of qualifications available in a national system would be acceptable. However, the JCHR and a number of professionals do not agree with that. The JCHR disagrees particularly with the Government’s definition of objective medical expertise. It says:
“In Varbanov v Bulgaria the Strasbourg Court gave every indication...that objective medical expertise involved reports from psychiatrists who are doctors. The Court made it clear that the opinion of a medical expert who is a psychiatrist is necessary for a lawful detention on grounds of unsoundness of mind. This requirement would have been met had the doctors present at the admission furnished an opinion that the applicant needed to be detained for psychiatric examination. This indicates that the opinion justifying detention should come from a medically qualified expert...who has recognised skills in psychiatric diagnosis and treatment.”
 My point is that, if the Government get their way, there is every chance that there will be serious legal challenge of the basis of the legislation. The Minister has warned on a number of occasions against having a field day for lawyers. This is a field day for international lawyers. I would like to know on what evidence the Government have based their opinion that their proposed change to the legislation is sound and that it will not be subject to legal challenge. It would be useful if the Minister would give us details as to which legal opinion the Government have taken. The Law Society, the JCHR and a number of others have severe reservations, based on case law, about whether the changes will be workable.
 There is another angle to the issue, which is the interaction between the Mental Health Bill and the Mental Capacity Act 2005, which treats these matters differently. The mental health assessment, one of the six assessments required in the 2005 Act for a Bournewood deprivation, must be carried out by either a registered medical practitioner approved under section 12 of the Mental Health Act 2005 or a registered medical practitioner who has special experience in the diagnosis and treatment of mental disorder. So, in those circumstances, only a doctor has responsibility. There is clearly an inconsistency between this Bill and the Act that is already law. Again, it would be useful if the Minister would tell us how she intends to square the circle on those two incongruities.
The BMA does not know of any international precedent for such an arrangement whereby detained patients do not come under the direct responsibility of a consultant psychiatrist. It cites Canada, Australia, the United States and other countries where that formulation just does not exist. We need to know why things would be different in this country, and how, if the Government get their way and overturn the Lords amendments, they expect the new arrangements to pertain without serious legal challenge.
 It is worth reiterating the training that psychiatrists must undergo. Two years after leaving medical school, trainees enter a rotational psychiatry programme, an elaborate passage that equips the would-be psychiatrist with knowledge of anatomy, physiology, pathology, pharmacology, medicine, surgery and psychological therapies. During the senior years of training, most junior doctors will acquire detailed knowledge of mental health law, teaching, audit, research and management skills. In contrast, mental health nurse training has moved away from a medical model in the past decade, so trainee nurses are no longer required to undergo training in medicine. Different disciplines are brought to bear through the experience and expertise of the different professionals under discussion.

Ian Gibson: Is the hon. Gentleman saying that in terms of medicine the training takes eight years? Will he confirm that there are six years of training as a medical student and two further years of specialty training? Is that what he is saying about training doctors?

Tim Loughton: I believe that those figures are right on the training of doctors. For a full-blown consultant psychiatrist, however, we are talking about 13 years, which means that considerable training, expertise and experience go into the specific job that psychiatrists are put in place to do. It is different from what a psychologist and consultant nurse will do.
To return to the premise of the Lords amendments, it must be in the best interests of a potential patient if a professional with the most extensive experience possible is available before the most momentous decisions in a patient’s life are made: first, the decision to section, with which the Government take no issue; and, secondly, the decision to renew sectioning. Some of us contend that the latter is a more serious and less obvious consideration, which is why the fullest expertise must be brought to bear.
 The Lords amendments would ensure that, before a detention was renewed, patients would receive similar consideration to that which they received during the original sectioning order. Surely, we just need to replicate the rigour of the original process. The amendments were changed in the Lords after the Government gave assurances in Committee about the skills and competences that would be required of a responsible clinician, which would be included in the code of practice. Again, it would be useful if the Minister would provide some details on what has happened since then.
The purpose of the amendments is to find some accommodation with the Government based on a clear reference to a legal case—a precedent in medical law—about what would be acceptable in the courts. We framed the amendments to refer to the case of Winterwerp v. The Netherlands, so that the objective medical expertise of mental disorder would have the same meaning as it has in that case. The amendments are a belt and braces exercise.
In conclusion, I repeat that the amendments would not debase the role of all other professionals involved in patient care; they would ensure that at a difficult time the very best professional expertise was brought to bear on the patient. When discussing the amendments that gave rise to the clause, Lord Carlile said:
“Each renewal of detention is a fresh deprivation of liberty.”—[Official Report, House of Lords, 19 February 2007; Vol. 689, c. 940.]
I wholeheartedly concur with that.
 There are glaring inconsistencies in the Government’s case, in having moved from their original position and now in keeping the medical conditions pertinent to the original section, and the potential inconsistency with the 2005 Act. I fear that if the Government get their way and overturn the amendments, it will be a recipe for confusion, particularly as to where the buck actually stops on decisions being made for patients’ renewed detention. Surely, that cannot be in the best interests of patients. Our amendments, which I propose formally, are a sensible way of accommodating the Government’s position and achieving a practical and workable solution in this important part of the Bill.
 Several hon. Members rose—

Ann Winterton: Order. Before I call the Minister or any other hon. Member, may I say that the hon. Gentleman cannot formally propose the amendments, but he can indicate later whether he would like a Division on them?

Tim Loughton: On the basis that I do not have to repeat what I said, may I indicate formally that I would like a Division on the amendments?

Sandra Gidley: I support the hon. Gentleman’s comments. I do not want to repeat at length too many of his points, but some are so fundamental that they cannot be stressed frequently enough, the hope being that the drip, drip effect will result in their getting through.
 Liberal Democrats are not against multidisciplinary working, and the majority of us actively support it. I say “the majority” because I have not canvassed opinions individually, so I do not feel qualified to say that we all support it. However, it is in the best interests of patients. It also provides a better working environment for health professionals if their skills are acknowledged and used. Good multidisciplinary working is a win, win situation.

Brian Iddon: Does that also mean joint working and joint decision making?

Sandra Gidley: If the hon. Gentleman bears with me, I will come to decision making.
I recognise the benefits of multidisciplinary working almost more than anyone, because I am a pharmacist by profession. Pharmacists and other primary health care professionals could learn a lot from what has happened in the mental health sector when developing joined-up services for patients. The word “patient” is key, because we must always have the best interests of the patient at heart.
 The Minister rightly highlighted the extent of training that other professionals must undergo to become responsible clinicians. Unfortunately, the document to which she referred this morning did not arrive in my office until after the start of the Committee, but I appreciate her intention to share the information.
The Minister said this morning that she did not think that consultant nurses, for example, had broad enough experience to allow them to start a section or, in other words, to be responsible for the initial deprivation of liberty. That is fundamental, because it acknowledges psychiatrists’ broader expertise and, to some extent, the 13 years’ training that has been mentioned.
 There is an inconsistency in the Government’s approach to mental health legislation. They have decided that two doctors are needed to start a section, and that two professionals are needed to put a person on to a compulsory treatment order, but that two people, one of whom is a doctor, are necessary to deprive a person of liberty under the 2005 Act. If the Government had their way, renewing a section could be done on the basis of only one opinion, which is not necessarily that of a doctor. There does not seem to be a consistent view throughout the mental health legislation.
 However, this is not about whether we hurt the feelings of any particular profession, and I find it hard to believe that the ultimate and professional recognition seems to hinge on whether that professional is deemed capable of depriving a person of their liberty for six months. Psychologists, nurses, occupational therapists are actually bigger than that. There is more to what they do, and I cannot believe that this is such a fundamental issue for them, or that they will leave the professions in droves if they are deprived of the right to do this. It has been largely overlooked in this discussion that, according to the House of Lords amendments, those people still have a key role to play.
 That brings me on to the shared decision making that the hon. Member for Bolton, South-East mentioned. Clause 6(3) clearly states that the responsible clinician and the medical practitioner need to agree. The legislation does not say anywhere that the medical opinion has greater weight, and it does not say that the responsible clinician has less weight either. In other words, there has to be an agreement between the two. If somebody is to be deprived of their liberty for a further period, that is a perfectly reasonable thing to expect.
The clause, as it stands, does two things. It provides reassurance both for those patients who would want to feel that they had received the greatest clinical input, but it also reassures those patients who, for whatever reason, mistrust psychiatrists. We must acknowledge, as was acknowledged earlier in the debate, that a number of mental health users mistrust the system. In other words, with the Lords amendment, we have the best of both worlds. The opinion of somebody whohas been responsible for looking after the patient for six months is going to be of equal weight to that of a medical practitioner who, in ideal circumstances, has some knowledge of the patient.
More importantly, having the two people decide provides a safety net. I was reminded of a constituent who came to see me. I know that is sometimes easy to be taken in, but this woman seemed incredibly rational, and she made a very good case, pointing out that her husband had put together evidence that, in effect, had her sectioned. I shall not bore the Committee with the details, but in such cases someone would have more protection if two independent-minded professional people were involved in further decision making than if the matter were left to just one person, whom the individual might not trust.

Rosie Winterton: The hon. Lady is aware that, at the moment, we are dealing with the renewal of decisions about detention, which involves only one person. She is quite happy with that, because that person is a doctor. If the person is a clinical psychologist or a nurse consultant, she is somehow not happy with it, and believes that the decision has to go to a doctor for signing off.

Sandra Gidley: I would prefer the two people, as was suggested by the Lords amendment, to have a joint decision.—[ Interruption.] Perhaps I have misinterpreted it, but that is the way that I read clause 6(3). That seems to be what they said. If joint working is the success that everyone claims, surely everybody would welcome the Lords amendment as being in the best interests of the patient.

Charles Walker: I want to make a short contribution to the debate on this clause. I do not profess to be an expert in this field at all, but if I were a mental health patient, being detained against my will, receiving treatment against my will, I would want the person with the most to lose to have the final say on my future—at least on my immediate future, and whether I would be detained. We talk about teams working together, so in essence, I would want the team captain—be it a substantive captain, or a temporary captain because the substantive captain is away—to have that final say against my will.
 I do not think that it is unreasonable for a consultant psychiatrist—a doctor—to have the final say. After all, the Bill is not about rewarding people but about safeguarding the rights of patients. The Minister mentioned earlier that she wanted to reward professional groups, and that is a noble thing to want to do. However, ultimately, she should not bow to pressure from professional bodies, such as the Royal College of Nursing, and unions. Of course, it is the role of unions and representative bodies to argue in the interests of their members—we would not expect any less of them. I am a member of Amicus, and I expect Amicus to argue my corner vociferously, but that does not necessarily make it right.

Rosie Winterton: I was not going to intervene quite so much, but the hon. Gentleman is saying that one should not bow to interest groups. Does he not feel that he is rather slavishly following the idea that only the doctors know what to do, a view that is expressed by some members of the Royal College of Psychiatrists, without recognising the other organisations that represent 85 per cent. of the other professionals?

Charles Walker: I take the Minister’s point, but ultimately we are talking about depriving people of their liberty and locking people up against their will. Let us start by talking about what is in their best interests. I feel that it would be in the best interests of people who were having their liberty taken away from them to have a doctor present at that moment to take responsibility for the decision.

Rosie Winterton: The hon. Gentleman is suggesting—never mind the fact that the Opposition want to delete the role of responsible clinician through the removal of clause 11 in the first place—that it is better for a patient to be examined, judged and signed off by a doctor whom they might not have seen for six months, rather than to have that decision made by the clinical psychologist or nurse consultant under whose care they have been.

Charles Walker: I imagine all good doctors, whether they are the patient’s substantive doctor or a doctor called in to review the case, would take advice from the clinicians who were treating that patient. Of course they would. I cannot agree with the Minister’s point; it borders on the fatuous, to be honest—but so much of what she says does. [Interruption.] Does the hon. Member for Stockport want to intervene?

Ann Coffey: Yes, I do. The hon. Gentleman should be able to make an argument without being personally insulting to the Minister.

Charles Walker: I am sorry, but if calling the Minister’s arguments fatuous is personally—

Ann Coffey: The hon. Gentleman called the Minister fatuous.

Charles Walker: If calling the Minister fatuous is personally insulting, I apologise, but I am sure that she is big and bold enough to take it on the chin.
In conclusion, I feel strongly that since we are talking about depriving people of their liberty for upwards of or up to six months, it is not unreasonable—

Brian Iddon: Will the hon. Gentleman give way?

Charles Walker: No, I will not. It is not unreasonable for the final signature to belong to a doctor—a consultant psychiatrist who, as my hon. Friend the Member for East Worthing and Shoreham has pointed out, will have upwards of 13 years’ experience.

Angela Browning: I have intervened on others during the discussion on the clause, and I do not want to repeat too much of what has already been said. The clause gives me great cause for concern. I sat on the scrutiny Committee on the previous proposals for a mental health Bill and a lot of the discussion was about the underlying intention in the Government’s proposal to reform the Mental Health Act 1983.
 In speaking on this Bill, both on Second Reading and in Committee, the Minister has sought to play down what was evident to everybody who took an interest in the subject a year or two back. At the heart of the legislation is the right to detain indefinitely. If anything triggers my concern, it is the renewal of a person’s detention under a different set of rules and qualifications to the initial detention. Why should the very careful and historical need for a senior medical input—indeed, more than one medical input—be changed for renewals? Several hon. Members have made the case that when someone has been receiving in-patient treatment for six months, they may present differently from the way they presented when they were originally detained, perhaps at a time of crisis. Why should the Government wish to water down the qualifications for renewal compared with those for initial detention?
 I am reminded of our discussions in the scrutiny Committee. As I have told the Minister more than once, the change in the definition of a mental disorder at the heart of the legislation concerns something that is more behavioural than something that has a diagnosis, and it is a cause for concern that that definition is combined with the right to detain indefinitely someone who has not committed a crime and who certainly does not have the due process of the criminal justice system in their favour.
I remind the Minister that around the time of the Michael Stone case, when there was great public discussion on how we should deal with people like him, there was an exchange of letters in the national press between the then president of the Royal College of Psychiatrists and the then Home Secretary, who is now the Leader of the House of Commons. I am sorrythat I do not have the exact quotations, but I recall that those three letters went along these lines: the psychiatrists expressed their reservations about what an Act such as this would require them to do, in terms of detention, and the then Home Secretary put it into the public domain that if psychiatrists did not want to deal with detentions, the Government would seek other ways of dealing with them and would find others who would. And here we have the solution in clause 6.
 The clause is not about creating equal opportunities for nurses, occupational therapists and psychologists: it is about finding a way around the difficulty that the Labour Government met when they bravely told the world out there that they were going to find a solution to the problem of locking up people like Michael Stone. Of course, that attracted a lot of tabloid headlines and the tabloids rode in behind that proposal. It was only when the Government got down to considering what happens in practice in psychiatry and how difficult these cases are that they realised that it would be difficult to draft legislation to provide that solution.

Rosie Winterton: Will the hon. Lady give way?

Angela Browning: I shall. I do not suppose that the Minister is going to put up her hands up and say, “Yes, this is our way around that,” but it does not pacify my concerns that that was the motivation for amending the 1983 Act in the first place.

Rosie Winterton: I must say that the hon. Lady’s comments were much more measured than those of the hon. Member for Broxbourne, who rather let himself down. However, I want to be clear about what she is saying. Is she saying that clinical psychologists, nurse consultants and all the people who work in mental health and who want to take on these additional roles are going to turn into people who would lock others up wrongly, unlike the psychiatrists? Is she saying that if we were to leave matters in psychiatrists’ hands, everything would be okay, but that the Government will use those health care professionals to lock people up? It is grossly insulting to them even to think that they could be used in that way.

Charles Walker: Oh, shut up.

Rosie Winterton: The hon. Gentleman is muttering, “Shut up,” but I think that—

Charles Walker: This is really boring now.

Rosie Winterton: I am sorry that the hon. Gentleman finds it boring, but I do not think that the health care professionals who are listening will find it boring. In fact, they might find his comments rather revealing of the Opposition’s view.

Ann Winterton: Before the hon. Member for Tiverton and Honiton speaks again, may I say to members of the Committee that I expect them to behave with good manners and to be courteous to each other? These issues are very important.

Angela Browning: Thank you, Lady Winterton.
Although I would be the first to welcome the enhanced roles of a range of disciplines in mental health and I can see from the point of view of multidisciplinary teams that a lot can still be done to the way in which we deal with both in-patients and out-patients—

Doug Naysmith: Will the hon. Lady give way?

Angela Browning: I shall do so in just a moment. I want to make a point to the Minister, who has just intervened on me. I wish to know who can provide objective medical expertise, or are we to take it from the anomalies in the Bill, under which one level is needed at one stage in the process and a different level is needed at another, that objective medical expertise is no longer required in the detention of patients? That is how it reads. It is incompatible to say that one set of people can provide medical expertise in one set of circumstances, but that for the same patient with the same period of treatment, it does not matter at the other end.
My colleagues have advanced views about why the renewal is perhaps more critical even than the initial detention. I agree. We also know that there are people in the health service who sometimes deal with potentially dangerous mental patients who would worry about their own safety when managing such people. I can think of situations involving dealing with constituents in high-security units in the Devon area in which the police have had to be called. It is not a matter of casting an aspersion on one set of people, but some cases are complex and a few of them are extremely dangerous even when the people are in-patients. It is at the patient’s end that we should be asking questions, about what is in their best interests. I cannot see that what the Minister is proposing as her objection to the clause is in the interests of the patient.

Doug Naysmith: The hon. Lady mentioned the Michael Stone case. I agree with you, Lady Winterton, that these are serious and important matters, but whether or not there was any truth in what the hon. Lady said about the circumstances surrounding the exchange of letters, was she saying that nothing could be done for Michael Stone? Surely there must be some way in which to help people like him. We must remember that he had asked for help on a couple of occasions and not received it. Is it not sensible to consider whether there is a possible way in which to help people such as Michael Stone?

Angela Browning: I am not suggesting otherwise for a moment. During our debates, I have made clear my concern about the lack of continuity in the community of people who may or may not have been treated as in-patients, but who have certainly come under the umbrella of mental health services. In my experience of looking at cases—fortunately none was as serious as the Stone case—I encountered a case in which a constituent fell through the net, did not receive ongoing attention from the mental health services and murdered his mother. I do not need to be signed up to the idea that we should be seeking to help such people.
What is the best form of treatment for the person has to be down to the clinical judgment of someone who has had many years studying such complex cases. That is the point. It is not that I am disparaging others and saying that they do not have a role to play—even a very senior role. Of course they do. However, I do not see the logic in the idea of taking decision making away from the person who was involved originally at a senior level in admitting the person for detention. It does not seem to make sense. I must therefore ask myself what is behind the Minister’s motivation for being so opposed to the clause.

Ann Winterton: I want to ask the hon. Lady one simple question: does she think that there is any role for responsible clinicians as we have defined them? If she does, will she say why the Opposition suggest, through their wish to delete clause 11, that that role of responsible clinician should not exist?

Angela Browning: We shall see what happens to clause 6—whether it is put to a vote or changed. We shall come to clause 11 later.
 The inconsistencies in the Minister’s argument on the renewal of detention make me wonder what is behind clause 6. It is inconsistent, although that is not to disparage those who have a role to play in other disciplines of mental health care, who would undoubtedly be involved in a patient’s treatment and management. We often use the word “treatment” in this debate when perhaps we ought to use “management”. Many people can play a role in the management of a patient; it does not necessarily follow that that would constitute a treatment. Many disciplines would certainly have a role to play in making sure that detained patients gained as much as possible from their detention period.
We are discussing renewals, and rolling out again after the first six-month period. That surely has grave significance for the individual concerned. I cannot accept the Minister’s argument on the clause. On Report in the Lords, the Government attempted to put some medical input into the patient’s care. Why was that good enough for their lordships, but not good enough for this House?

Ann Winterton: Lady Winterton, may I take this opportunity to welcome you back to the Committee? I did not have that opportunity during my interventions.
I should like quickly to summarise some of the points made. It is important to reiterate that we are trying to make sure that we reflect some of the new ways of working that have been developed for a number of years—with the royal colleges, mental health care professionals and so on—so that we can recognise the new roles that highly qualified nurse consultants and clinical psychologists can play in a multidisciplinary team. We wanted the ability to give them that role as the responsible clinician.
It is important that the Opposition should be honest about how they really feel. They have tabled an amendment that would delete clause 11, thereby deleting the whole idea of the responsible clinician. It is important that we should see the amendment in that light. Their starting point appears to be that they do not want the responsible clinician to exist. We are saying that there is a role and that it is right that in legislation we should be able to reflect what is happening in many areas of service development. If the Opposition’s intention is as I have described, I make it absolutely clear that we fundamentally disagree. We believe that there is a role.

Tim Loughton: I should point out that amendments Nos. 60 and 61 refer to a responsible clinician, according to the definition that I have mentioned.

Ann Winterton: Absolutely; that is why they are so bizarre when read alongside the amendment to delete clause 11. That is what I find bizarre. On the one hand, the Opposition say—[Interruption.] I think that the hon. Gentleman has been called out by his adviser, but I hope that he will stay to hear the arguments.
I start from the point of view that the Opposition may not want a responsible clinician to have any role at all; obviously, the Government do. We come to the issue of the difference, which has been raised. At initial detention, the responsible clinician, who may not be a doctor, decides about renewal. There is no requirement in relation to the European Court of Human Rights for doctors to decide about initial detention. Indeed, we considered whether two approved clinicians should make that decision, because we felt that that could be appropriate, but as a matter of policy, and listening to the points that people made, we decided to keep doctors as making the decision because, at initial detention, some patients are not known to services or have disengaged from services, so a patient’s clinical needs may not be known at that point. We felt that it was practical that doctors, with their particularly broad diagnostic skills, should decide whether people should be detained.
However, once the patient has been assessed and their needs are known, it is right, in our view, that they should be given the responsible clinician who meets their needs best. That is one of the benefits of the responsible clinician policy. The patient may be allocated a person to be in charge of their case who has the particular expertise to address their treatment needs best.
I come to the Winterwerp judgment. The hon. Member for East Worthing and Shoreham is right to say that the European Court of Human Rights held that
“except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority—that is, a true mental disorder—calls for objective medical expertise”.
The reference is not to the expertise of a psychiatrist; it is to “objective medical expertise”.
 The competencies that we have set out for becoming a responsible clinician, which have been developed in conjunction with stakeholders, including the Royal College of Psychiatrists, state that a clinician must have the ability to identify the presence and the severity of a mental disorder. I stress to hon. Members that if the person lacks that expertise, they will not qualify to be approved to carry out the work. It is those competencies, which will be in statutory directions, as opposed to the possession of a particular medical qualification, that will ensure that an approved clinician can provide the objective medical expertise required by Winterwerp. That is also, by the way, the view of Queen’s counsel. I am sure that hon. Members will have seen the document from the British Psychological Society—I hate to mention it again!—which sought independent counsel to verify that that it is the correct position.

Angela Browning: Under what the right hon. Lady is outlining, could there be a responsible clinician who did not have the medical qualification that would be sufficient to oversee a treatment plan? If so, who would take responsibility for the treatment plan?

Ann Winterton: As I have said over and over again, it depends on what is right for the individual. If we are talking about psychological therapies being right for the individual, the responsible clinician should be the person who delivers those. If, as my hon. Friend the Member for Stockport mentioned, there was a case of paranoid schizophrenia that required medication levels that needed to be medically assessed, it would be right that a medical practitioner played that role. We are talking about what is most appropriate for the individual patient.

Tim Loughton: I hope that the Minister will address my point about the Varbanov v. Bulgaria case. It was made clear in the court that the opinion of a medical expert who is a psychiatrist is necessary to qualify as objective medical expertise.

Ann Winterton: Yes, I will address that. The Joint Committee on Human Rights talks about the case of Varbanov v. Bulgaria in support of its view that objective medical expertise involves reports from psychiatrists who are doctors. However, the Government believe that the specific reference in that case to the fact that
“a prior appraisal by a psychiatrist...was possible and indispensable”
related to the specific circumstances of the case. We accept that the case confirmed the need for a medical expert’s opinion where someone of unsound mind is to be detained, but we do not agree that it gives authority to the proposition that a psychiatrist must provide the necessary medical expertise in each case.
 Let me just clarify some of the issues, because that might help the Opposition. Clause 25 already requires the responsible clinician to consult one other person who is professionally concerned with the patient’s case before renewing detention. Good practice would certainly dictate that all members of the multidisciplinary team, including the doctor, were consulted, and that is generally what happens. However, I am quite willing to say that we can look at the code of practice if Opposition Members feel that that would be a good way of strengthening how decisions on renewal take place. That would, however, be in the context of there being a responsible clinician, and the Opposition are currently saying that a responsible clinician should not exist in the first place. I hope that that explanation is helpful.

Tim Loughton: It is helpful on a different subject, because the Minister’s colleague in another place promised to return to the issue of how the code of conduct might be strengthened to give us some reassurance, but that has not yet happened, and I wonder how long the Government will take. However, to take the Minister back to her response to my query on Varbanov v . Bulgaria, where has the legal opinion that she quoted been published? Where can members of the Committee have access to that opinion, which was commissioned by the Government, so that we can better inform our deliberations? I have not seen it.

Ann Winterton: I do not know where it has been published, but I can look into the matter for the hon. Gentleman if that would be helpful. I am more than happy to do that, but I do not have details of it in front of me—[ Interruption. ] As if by magic, here it is, which is excellent. I am more than happy to let him and other members of the Committee have copies if that would be helpful.

Tim Loughton: About half an hour ago would have been helpful.

Ann Winterton: I accept that the hon. Gentleman would like to see the opinion, but I can do no more than suggest that I send it to him, as I said. I hope that he will think that that is entirely reasonable.
 The hon. Gentleman made a point about the code of practice, and we need to be sure about the outcome of the parliamentary process before we finally consult on what will be in the code. I am more than happy to say that we can start discussions and put forward wording to show how we might clarify how a decision to renew detention would be made and how members of the multidisciplinary team would be involved. Again, however, I emphasise that we should do that in consultation with the professions. We should not just do things quickly and involve only parliamentarians, because the professionals would not find that very satisfactory.
 To reiterate, my fear is that the Opposition do not believe in the idea of having a responsible clinician because they want to delete clause 11, which actually establishes the responsible clinician. In the light of that, I think that some of the debates that we have had about clause 6 are a bit disingenuous. The Government think that the clause is patronising to non-medical professionals. The responsible clinician competencies insist on a high level of skill, including the ability to recognise the existence and severity of a mental disorder. Yet, the clause says that despite the clinician’s ability to determine whether it is necessary for a patient to be detained in hospital because they have a mental disorder severe enough to warrant it, that decision must be signed off by a doctor. The Government believe that that is completely the wrong approach and I will be asking Government Members to oppose the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Clause 6 disagreed to.

Ann Winterton: We now come to clause 7—

Tim Loughton: On a point of order, Lady Winterton. I thought I had said that we wished to vote on amendments Nos. 60 and 61. May I not do that?

Ann Winterton: They will come later.

Clause 7 ordered to stand part of the Bill.

Clause 8

Appropriate treatment test in part 4 of 1983 act

Amendments made: No. 19, in clause 8, page 4, line 28, at end insert—
‘( ) In the following provisions, for the words from “, having regard to” to the end substitute “it is appropriate for the treatment to be given.”—
(a) section 57(2)(b) (certification of second opinion where treatment requires consent and a second opinion), and
(b) section 58(3)(b) (certification of second opinion where treatment requires consent or a second opinion).’.
No. 20, in clause 8, page 4, line 31, leave out from ‘is’ to end of line 32 and insert
‘appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.”’.—[Ms Winterton.]

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

Clause 10

The fundamental principles

David Kidney: I beg to move amendment No. 54, in clause 10, page 5, leave outline 16 and insert—
‘(h) assessment of risk,
(i) transparency’.

Ann Winterton: With this it will be convenient to discuss the following amendments: No. 41, in clause 10, page 5, line 16, at end insert—
‘(i) the particular needs and impact of treatment on black and minority ethnic patients.’.
No. 66, in clause 10, page 5, line 16, at end insert—
‘(i) the rights of victims’.
No. 55, in clause 10, page 5, line 17, leave out subsection (2C).

David Kidney: It is a pleasure to serve on a Committee chaired with your usual sure and firm touch, Lady Winterton.
This is a probing amendment. Clause 10 amends section 118 of the 1983 Act to insert new requirements into the existing arrangements for a code of practice. It requires the Secretary of State to include in the code a statement of principles that she thinks should inform decisions made under the Act.
 The clause contains a list of issues that need to be addressed in the preparation of the statement of principles. Amendment No. 54, which is linked with amendments Nos. 41, 66 and 55, would amend that list as I shall describe. Amendment No. 41, tabled by Conservative members of the Committee, would add another consideration to the list—the impact on black and minority ethnic patients. Amendment No. 66, tabled by my hon. Friend the Member for Bridgend, would add to that list the rights of victims. Amendment No. 55, tabled by Conservative Members, would omit the proposed new subsection (2C) on the efficient use of resources and the equitable distribution of services.
The draft code contains the proposed principles; on the whole it is a good list, which is well set out and makes sense. However, amendment No. 54 picks up on two differences between the draft code’s principles and the list in clause 10: first, a difference in terminology and, secondly, what I would say is an omission inclause 10.
 On the difference in terminology, the draft code refers to an assessment of risk, whereas clause 10 refers to the protection of the public. The purpose of my amendment is to include in clause 10 assessment of risk instead of protection of the public to make the two consistent. I prefer the description “assessment of risk” rather than protection of the public for a number of reasons. First, it would make it clear beyond peradventure that criticism of the Bill on grounds of saying that it is about social control as an aim is ill judged. Ensuring that we do not leave protection of the public standing on its own as a separate item in clause 10 would help to make that clear. Secondly, such a description would make it clear that the patient should be the focus of the assessment carried out by the medical practitioners. The patient and the treating doctors want to limit the danger of harm to others—for example, relatives, carers and strangers—as well as to the patient. Thirdly, such an approach would make it clear that it is the risk assessment that then weighs up the various considerations. The amendment therefore suggests that the change should be to the clause 10 list, to say that assessment of risk is a matter to be taken into consideration. It is already in the statement of principles of the draft code that there should be an assessment of risk, and there is a very good section afterwards that explains how the assessment should be made to weigh up the relevant risks better than at present.
The second part of the amendment would correct the omission to which I referred earlier and add to the list in clause 10 the word “transparency”. It is in the draft code’s principles—a good short statement that transparency is important—but it does not appear in the clause 10 list. It is an important consideration, not an add-on or a catch-all. Transparency is much more than simply alerting people to their rights; it is about explaining to them the procedures that will be carried out—what will happen and why—the decisions that need to be made and what will be the consequences. All that is part of transparency, not just communication.
 Clause 10 was a Government amendment in the other place, which was accepted by the Opposition parties. In the House of Lords debates, there was concern about the status of the code. Proposed new subsection (2D) says that all those who have responsibilities under the Act
“shall have regard to the code.”
The explanatory notes tell us that that gives statutory effect to the decision of the House of Lords, as the final court of appeal, in the case of R. v. Ashworth. That basically said that people making decisions should have regard to statute law and try to apply it in most circumstances, but that practitioners can depart from it with good reason. Opponents of that last point say that it is a weakness, which is why many people make strong demands about principles being stated in primary legislation, not just in a code of practice.
If it were possible to find a way to enable the Bill to reassure us with a ringing declaration of the rights and principles under it, that might well take away some of the concerns that have led to amendments on treatability, exclusions and so on. It might be possible to devise a solution different from the current one, to give the extra guidance to practitioners that some have appealed for while guaranteeing the safeguards for service users that others have asked for. That would mean the Bill being tidier and not needing the amendments that were made in the other place.

James Duddridge: The hon. Gentleman defined transparency. I was initially confused as to what it would mean. Why does he not table an amendment that would carry that definition rather than refer only to “transparency”, which is, paradoxically, a rather opaque term?

David Kidney: That is a good point. The draft code states on the transparency principle that
“decisions by professionals and statutory bodies should be made in a transparent way”.
To answer the hon. Gentleman’s question directly, I did make a visit to the Public Bill Office before our deliberations began and presented a large suggested amendment that would have put all the relevant principles in the Bill. I shall not labour the discussion that I had with the Clerk, but suffice it to say that more work needs to be done on the principles behind the Bill and their status before we finish our deliberations.

Madeleine Moon: I also welcome you to this afternoon’s deliberations, Lady Winterton. I hope that they will be calmer and more rational than this morning’s were at times.

James Duddridge: Apologise to the Minister.

Madeleine Moon: The hon. Gentleman suggests that the apology should be to the Minister. Instead I commend her for the calmness with which she has taken all the amendments and the suggestions, at times hysterical, of hidden agendas behind the Bill.
As my hon. Friend the Member for Stafford explained, the issue of fundamental principles is critical to calming what has sometimes been hysteria, but which at other times has been a genuine reflection of fears and anxieties expressed in many of the submissions that we have received. One of the most positive things about the new way of looking at evidence in Public Bill Committees has been the opportunity for people to express their fears and anxieties, and for hon. Members to read them and get a clear impression of the views of many different bodies and professions.
Many questions have been asked during our deliberations about the intentions underlying the Bill. The clause gives us a good opportunity to be clear that there are such underlying intentions and that they are set out in the fundamental principles. The Bill is intended to update legislation from 1983. Much has changed; we have moved on as a society. Many of the prejudices towards the mentally ill have changed, as have many of the ways in which we work with people who have mental health problems. The training for professionals and the way in which the professions deal with each other has also changed. In particular, we have far more community-based care than we had in 1983. Therefore, it is more than appropriate that the Bill recognises those changes and tries to project forward into the future to determine how, as a society, we want to facilitate the care for those who have mental health problems.
We have been very clear in saying that what we are trying to do is to ensure that the patient has access to help and support in times of crisis, and that a patient’s personal identity remains central to the deliberations that take place during treatment. At times, there has perhaps been a lack of recognition that the emotional pain that is often experienced during times of mental ill health is more excruciating and more debilitating than any physical pain. That emotional pain can be terrible. 
I particularly welcome the fact that, within the underlying principles set out in proposed new subsection (2B) in clause 10, the first three principles— (a), (b) and (c)—focus initially very clearly on the patient. The Bill says that there must be
“respect for patients’ past and present wishes and feelings”.
I have today tabled an amendment that I hope will also allow greater attention to be paid to patients’ past and present wishes and feelings when we examine advance directives. I know that another amendment has been tabled in relation to that, and I have also tabled one in relation to advance statements, which I hope will allow greater recognition in the Bill of patients’ past and present wishes and feelings, so that they can be clearly identified and have a status in an advance statement.
We have said clearly that we wish to minimise restrictions on liberty. I hope that that will also remove some of the anxiety felt—the belief that there are hidden intentions to use this legislation as a catch-all Bill to lock people away, including those chain smokers that still exist in our society, although I cannot believe that that scenario really has been suggested in this House.
In particular, all of us—the professionals, patients, carers, anyone who works with people with mental health problems—should welcome the third principle, which is principle (c). It is the
“involvement of patients in planning, developing and delivering care and treatment appropriate to them”.
There can be no clearer statement as to the central role that the patient will play when decisions are made by professionals in response to the Bill.
 However, we also need to take into account the feelings of the people who have not been mentioned so far in our deliberations and the effect of the Bill on them, because it must address the need to protect, help and support the wider public. There has been a great deal of discussion about professional roles, professional tasks, professional responsibilities, professional training and professional skills. However, much of the care of the mentally ill is provided not by professionals, but by carers, and they are responsible for patients’ well-being and safety.
In its submission MH49, SANE sets out that position well, speaking of the need to safeguard the rights of those with mental illness or disorder. Legislation should respect and protect those families and carers who provide support to people day in, day out.
Sandra Sullivan of Justice for Victims wrote a book of poems in memory of her murdered daughter, Katie. She said:
“To trust the unsuspecting with the unaccountable is the policy of an uncaring government.”
 There has been little reference to carers or to the continually stressful role that they often play in supporting mental health patients. Without them, many such patients would not be able to cope. In the submission by the Princess Royal Trust for Carers, 47 per cent. of carers are described as feeling that they have insufficient help to care efficiently and effectively. The Zito Trust has reported that, according to 35 independent homicide reports, non-compliance with medication was a contributory factor in 57 per cent. of cases of breakdown of care that led to homicide.
Information for carers is essential if they are to provide adequate care, and I believe that the advance statement provides an opportunity to widen the list of carers to whom information can be provided. Carers are a diverse group: they are partners, family, friends, professionals, home care workers and residential care workers. We must place a duty on professionals to share information, and that needs to be a part of the Bill.
Amendment No. 66 is a probing amendment which I felt I had to table after I had met Justice for Victims. That organisation told me about how the fear of the unknown—the fear of difference—much of which is unfounded in relation to people with mental health problems, has for some people proven to be a nightmare reality. Sandra Sullivan expresses that well in her poetry when she says:
“I had my heart removed today. There is a hole where it used to be.”
The experience of violence or death as a result of an interaction with somebody who is in crisis and who has a severe mental health problem can produce a profound effect in some people, so it is unfortunate that Opposition Members were unable to meet Justice for Victims.

Tim Loughton: We were not invited.

Madeleine Moon: I had understood that there was an offer to meet, and that the meeting had not taken place.

Tim Loughton: During the past few months, my hon. Friends and I have met many organisations with different perspectives, including the Zito Trust, which the hon. Lady mentioned. I am not aware of any invitation having been made by the other organisation that she mentioned, but I would have been more than happy to meet its representatives, as I did everybody else.

Madeleine Moon: I am pleased to hear that offer and commitment. Justice for Victims informed me that a meeting had been arranged for Monday but that it had not taken place. I apologise if I have been wrongly informed.
The Zito Trust has drawn attention to the lack of support or recognition for victims in the Bill. The Domestic Violence, Crime and Victims Act 2004 has a scheme for providing information to victims of mentally disordered offenders. However, it applies only to restricted patients and patients subject to a restriction order, a limitations direction or a restriction direction. It is concerned with those who are charged with a sexual offence or an offence of violence and who are convicted, found not guilty on grounds of insanity, or found unfit to be tried.
In those circumstances, the local probation board must take reasonable steps to ascertain whether the victim, or their representative, wishes to receive information about conditions in the event of a discharge from hospital. The board must take reasonable steps also to let them know if or when a restriction is to cease following a discharge, and any other appropriate information. Equally, the Secretary of State must inform the probation board, which in turn must inform the victim or their representative, when considering whether to lift the restriction on a patient, to discharge the patient—absolutely or subject to conditions—or to vary the conditions.
 As I am sure the Committee recognises, victims are calling for rights set out in the 2004 Act to be extended to victims of serious offences, including violence, at the hands of a mentally disordered person who has been convicted and subjected to a hospital order, or a hospital or transfer direction, but not to a restriction order, or limitation or restriction direction. It is right that the Bill strikes a balance between our responsibilities to, and protection and justified restriction of, those suffering from a mental health condition with our responsibilities to victims of violence. Their voices should be represented. For that reason, I have tabled my amendments.

Tim Loughton: I would like to provide some clarification on what the hon. Lady said about Justice for Victims. We listened very seriously to the evidence given to the pre-legislative scrutiny Committee. My memory is that the organisation arranged a meeting with my hon. Friend the Member for Cotswold (Mr. Clifton-Brown), who is not a member of this Committee. His office did not arrange for us to meet it as well, but I would be more than happy to do that in future. Certainly, there was no intention not to meet it; it is just that the invitation was not passed on. That was the problem. However, we could certainly arrange a meeting. Nevertheless, we have met other organisations with similar concerns, and I am happy to expand on that.
I listened carefully to the case for the amendments, which I think are useful and thoughtful, and I am interested to hear the Minister’s response. Let me provide some background to the principles. They were potentially one of the big battlegrounds, but a sensible compromise on them was reached in the Lords. However, some people are still unhappy, and that goes back to the technicalities of this being an amending Bill, so we are told by the experts, rather than one to which we can apply principles. However, applying principles to existing legislation poses technical problems. I am sure that the Minister can confirm that—she nods her head helpfully.

James Duddridge: I apologise if I am stealing my hon. Friend’s thunder, but was it not the case that when the two draft Bills were introduced, they were Bills in their own right, rather than amendments to the 1983 Act? The Minister has refused consistently to allow the principles to be placed in this Bill. It is not about amending the Bill, but about her view of what should happen.

Tim Loughton: My hon. Friend is absolutely right, and given that that happened before he was elected to the House, it is diligent of him to know the Bill’s origins. Neither of the two draft Bills, with which we were faced back in the aeons of time and from where this Bill originates, contained principles, and they were original Bills. The contention of all concerned and of the pre-legislative scrutiny Committee was that principles should be placed clearly in the Bill. I remember that the Minister came before the pre-legislative scrutiny Committee and was challenged on that. She made the case that occasionally principles could be disapplied, and we asked her when the principle of non-racism could be disapplied, because it is difficult to think of an instance when that could be the case. Surely non-racism should apply to this and every other piece of legislation, and there is no juncture at which, all of a sudden, a little bit of racism would be acceptable.
That is why fundamental principles that go to the heart of safeguarding the rights and treatment of vulnerable people subject to sectioning should be clearly laid out. The point made by the hon. Member for Stafford about transparency is right. If we are to deprive somebody of his liberty, the principles on which that liberty is taken away must be clearly outlined, as well as the basis on which he can challenge the judgment. Setting out principles to back that up is exceedingly useful. It provides a good safeguard for the patient and a clear instruction for both the professional and the lawyer who might seek to challenge it on a client’s behalf. We have always taken the view that principles should be on the face of the Bill
For technical reasons, it was suggested that that posed a problem. Therefore, their lordships came up with the compromise whereby the fundamental principles in the code of conduct are mentioned in the Bill without being principles themselves. Some of us are still not completely happy with that, because they will not have the cachet of being in the Bill, but in the interests of achieving some accommodation in order to proceed, their lordships were content—I shall not say happy or delirious—to accept the compromise.
On that basis, we will not return to stage one and say, “Let’s have the principles on the face of the Bill,” because that would be going around in circles. However, things can be done to beef up the quasi-principles in the code of conduct, as the Bill alludes to it. I return to the case that we made in pre-legislative scrutiny Committee. It would be useful if the Government could lay out, at an early stage and in as detailed a form as possible, the code of conduct, particularly as it will be crucial if things are not in the Bill but in the code. The applies as a general rule, as I think other members of the Committee will concur.

Hywel Williams: I also have concerns about the degree of legal protection afforded, given that the principles will be in the code of conduct. Perhaps another question that might be addressed is how the principles might be varied, if they are to be varied, as the Minister said when she came before the Joint Committee. The mechanism is of interest to many and would need to be safeguarded.

Tim Loughton: The hon. Gentleman makes a valid point, and he was privy to those discussions in the scrutiny Committee as well. Most of what we would describe and understand as fundamental principles are fairly timeless in any case, but codes of conduct are subject to constant revision. Those are areas of concern on which we need assurances from the Minister. How will they be handled?
 On an interesting point, I attended the Black Mental Health UK presentation earlier, between the two sittings. It was held in Committee Room 6 and had a number of eminent presenters, some of whom spoke at our witness session last Friday on the concerns of black and minority ethnic communities about the way that the Bill is going. My first amendment, to which I shall come, specifically addresses BME considerations. Black Mental Health UK said quite clearly in today’s briefing and have said previously:
“BMH UK believe that mental health law should be framed within both human rights and race relations legislation and geared towards reducing discriminatory practices and increasing the protection of the rights of both patients and carers engaged with mental health services.”
I think that we would all agree with that. It went on to say:
“The 2006 Mental Health Bill fails on all of these points. BMH UK believe this Bill is unethical and unworkable and has thrown away the opportunity of updating the 1983 Mental Health Act so that it meets the demands of a 21st Century multicultural society.”
BMH UK still has serious concerns. Clearly, the fact that the principles are not included in the Bill has undermined its confidence. It will listen to the points that we are making. We hope for assurances that the principles will serve the purpose that we are all trying to achieve.
 We received an interesting presentation from a consultant psychiatrist. To paraphrase him, he said that psychiatrists work around a code of practice—as long as something is not legally binding, they can work around it. If it is legally binding, as legislation would be, with principles included in the Bill, they will follow it. It is interesting that, according to that interpretation by a practising psychiatrist, a code of conduct does not carry the same weight and gravitas as primary legislation. One therefore has slight concerns about how practitioners view the code of conduct as opposed to something in the Bill.
We need reassurances from the Minister about how things will work in practice. I have provided a bit of background to how we got to this stage on the issue of principles. We are not tabling amendments to ensure that the principles are put back into the Bill, but we need some assurance.
Amendment No. 41 would add to the fundamental principles a reference to the particular needs of black and minority ethnic patients and the impact of treatment on them. The principle of “avoidance of unlawful discrimination” is included in proposed new subsection (2B), but that can refer to all sorts of discrimination; there is no specific reference to racial discrimination. We have tried to adopt a more positive form to take account of particular needs, because we know that the black and minority ethnic community has particular mental health needs and that it is particularly susceptible to the need for mental health services and sectioning.
 I do not need to remind the Committee that a King’s Fund study found that members of the black population were seven times more likely to be admitted to a medium secure unit. Men from black Caribbean, black African and other black groups had a rate of detention ranging from 25 to 38 per cent. above average; a similar pattern was noticed for women, with a detention rate that was 56 to 62 per cent. higher than average for those from black Caribbean, black African and other black groups. In 2005, rates of suicide and self-harm were 60 per cent. higher for young Asian girls than for their white counterparts.
We all know—I do not think that there is any contention over this—that people from black and minority ethnic communities are caught up far more than others in mental health services. There are particular problems with getting them to present in the first place. After the case of Rocky Bennett, there are concerns about the way in which black men are treated by the mental health services when they are contained and the fact that black men are subject to sectioning on a scale that far outweighs their representation in the population as a whole.
The black and minority ethnic community clearly has perfectly legitimate concerns about the impact of the legislation on it. It is worried that some of its members, who are represented through BMH UK, might be scared off from presenting for services in the first place, which we know is so crucial. It is essential that we take account of those needs. In response to this probing amendment, we need some assurances on how the Government aim to take care of the requirements of black and minority ethnic community. From the “Count Me In” census, which was eventually published earlier this year, we know how the fears of that community filtered through to have a real impact on the number of its members caught up in mental health services.
It is particularly important that those concerns are taken on board in the light of the debate about exemptions that we had when we considered clause 3. We were trying to promote exemptions in respect of cultural or religious beliefs, which are of particular concern to the BME community. We do not have the safeguards that we wanted, in the form of exemptions in clause 3, so it is even more important to add something to the principles to give assurances to people from the BME community that they will be looked after and given appropriate treatment, and that they have no reason to fear coming into contact with mental health services. That is the basis of amendment No. 41.

David Kidney: As the hon. Gentleman says, the list in clause 10 at least includes new paragraph (2B)(d), which states “avoidance of unlawful discrimination”. That gives the tie-in to the draft code, which we have before us. He has not mentioned it, but does he agree that it contains a good non-discrimination principle. It states that
“patients should not be discriminated against, either directly or indirectly, on the grounds of age, gender, sexual orientation, race, colour, language, religion or national, ethnic or social origin.”
Does he agree that that goes quite a long way along the road that he mentions—the only things that are missing are disability and politics?

Tim Loughton: Well, that is an interesting addition, although it is a bit late for the hon. Gentleman to add his own amendments. I agree with him, but the things that he mentions are negatives. That is why we have framed amendment No. 41 in terms of a positive. We want to take account of “particular needs”; we are not talking about particular needs that should not be “discriminated against”. We must send a clear message, offer clear, positive action and give assurances to people from the BME community that account will be taken of their needs. That does not happen in the negative, “discriminatory” clause.
Amendment No. 55 proposes to leave out new subsection (2C). I am perplexed as to why that provision remains in the Bill, but I am sure that the Minister will clarify the point. New subsection (2C) deals with matters of funding and general service delivery that do not concern individual professionals applying the compulsory powers of the Mental Health Act, so it looks out of place in this list. The presence of a provision in the principles section of the code of practice that is about service provision will surely cause confusion. Worse still, such a provision would be in danger of being misunderstood as providing a reason for professionals to take less account of the principles themselves. The Mental Health Alliance does not accept that this should occur.
We are also puzzled about how the provision might work in practice and what the Government aimed to achieve by its inclusion. Again, amendment No. 55 is a probing amendment, but this provision looks out of place. I have no problems with the list in new subsection (2B), subject to the additions that we propose and perhaps to consideration of some of the additions that Labour Back Benchers have proposed, but we do not see the rationale for new subsection (2C). I would be grateful if the Minister would elaborate on both those points.

Sandra Gidley: I realise that we are dealing with the amendments, but as we have spoken generally about the Bill, some of my remarks will be stand part comments in order to shorten the length of the debate.

Ann Winterton: Order. Bearing in mind what the hon. Lady has just said, perhaps it would help members of the Committee were I to indicate that we could open our discussion out to a stand part debate, and do this all in one fell swoop.

Sandra Gidley: Thank you for that clarification, Lady Winterton. As has been stated, the clause tries to address concerns raised in the other place that principles needed to be in the Bill. The reasons why that is difficult have been outlined. I want to clarify the position in the draft Bill, because the hon. Member for East Worthing and Shoreham said that no principles were outlined in the earlier Government drafts. I read Baroness Barker’s comments in the other place. She said:
“the Government’s draft Bill of 2004, which was the subject of the work of the Joint Scrutiny Committee, included at its beginning three principles—that patients should be involved in decision-making, that decisions should be made fairly and openly, and that interference to patients in providing medical treatment and restrictions imposed on them during treatment should be kept to a minimum to protect their health and safety and that of others. So the Government themselves, in 2004, could see a case for having principles included in the legislation.”—[Official Report, House of Lords, 8 January 2007; Vol. 688, c. 16.]
I noticed that the Minister did not jump to her feet to defend the accusation that there were no principles in those draft pieces of legislation.

Ann Winterton: No there were not.

Sandra Gidley: There therefore seems to have been some confusion about the interpretation. That is a point that I wish to clarify and the Minister can deal with that if she wishes.
Lord Hunt confirmed that there was no constitutional problem with including principles on the face of the Bill, but said that the Government were concerned about the practical impact of those principles. We have also heard that it is very difficult to put principles in another piece of legislation when one is dealing with an amending Bill. He considered that the best way forward would be to incorporate them into the code of practice, which is where we are with this amendment. He also said:
“Putting the principles in the Bill might well lead to a lack of clarity and a lack of understanding by practitioners who have to operate day in and day out.”—[Official Report, House of Lords, 8 January 2007; Vol. 688, c. 46.]
I found that a rather strange argument. Either the principles are clear or they are not. They are just as clear or unclear whether they are in a code of practice or a Bill. But any principle should also stand the test of time.
I find it hard to believe that in a few years hence we will disagree with the notion that, for example, patients should be involved in the decision-making and that those decisions should be made fairly and openly. That seems to be what is widely agreed at the moment. Any such change in principles is surely a matter of fundamental importance and should be debated by Parliament. When the Joint Committee on Human Rights commented on the draft 2002 Bill it said that the capacity of a code of practice to give sufficient protection to the human rights of patients in the decision-making process was unclear. It would be useful if the Minister could reassure us about how much weight the code of practice will have.
In new subsection (2B) we now have a list of principles which could appear a little contradictory. I have a slight problem with the whole package. Paragraphs (a) to (d) are broadly akin to the comments made by Baroness Barker. When a set of principles revolves around the patient, there is a certain clarity about what is involved and what is intended. But the Government have included paragraph (h) which is “public safety”. The cynics could say that this is yet more evidence of the cold hand of the Home Office on this Bill. Perhaps the Minister could clarify the reasons for this being included.
How does, for example, a practitioner balance the patient’s wish for liberty, which is in paragraph (b), against a perhaps not well-founded but nevertheless expressed caution from a third party about a potential risk to public safety? To be frank, we are supposed to be dealing with health legislation. I am somewhat surprised to see public safety expressed as a core principle. I am much happier with the wording achieved by amendment No. 54, tabled by the hon. Member for Stafford, as the transparency element implies a greater level of protection. The amendment makes it clear that there needs to be a full and proper assessment of risk. One would assume that that would happen anyway, and I am sure that most health professionals would be astounded that such a thing could be suggested, but it is always useful to have such things clarified.
As the hon. Gentleman pointed out, we are talking about the draft code, so it would be helpful to know what opportunities Members of Parliament, including those in the other place, will have to have some input. It is right that the code of practice is widely consultedon by professionals, but it is not clear whether parliamentarians will have a say or in what format. It would be helpful if the Minister could clarify that.
 Amendment No. 41 is important. It has been pointed out that the issue could be covered by paragraph (d), which mentions the “avoidance of unlawful discrimination”. The concerns of black and minority ethnic groups have been raised on a number of occasions during the debate. Document MH23, a submission from the National Black and Minority Ethnic Health Network, states:
“The differential impact of the proposed mental health legislation on BME groups is a well-documented feature of the mental health system.”
The organisation cites the “Count me in” census as the latest in a long line of evidence. It also comments on the McPherson inquiry into the death of Stephen Lawrence, which stated:
 “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. This can be seen or detected in processes, attitudes, and behaviour that amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantages people in ethnic minority groups”.
 As has been pointed out, it is not enough to say that we treat people equally, whatever their colour or creed. There is, or there should be, a positive duty to ensure that any particular section of society is not disadvantaged by legislation, and I would welcome the Minister’s thoughts on that.
I can see that amendment No. 66 is well intentioned, but I again suggest that amending mental health legislation is not the place in which to deal with the issue. I was pleased that the hon. Member for Bridgend mentioned the Domestic Violence, Crime and Victims Act 2004, because amending that would be a far more appropriate way forward. I support the sentiments behind the amendment, but I am not convinced that it is the best way for her to achieve her aims.
Amendment No. 55 would prevent the insertion of subsection (2C) into section 118 of the 1983 Act—the requirement for the Secretary of State to have regard to 
“the efficient use of resources, and...the equitable distribution of services”.
When I first read the amendment and saw that it was tabled by the Conservatives, I thought that, although they are always banging on about spending money wisely and the fact that we in the south-east are not getting enough—

James Duddridge: And Romsey.

Sandra Gidley: And Romsey, of course—there is a wider point to be made. Although those are important considerations, and while decisions must be challenged when things go wrong, I am concerned about that line—

Sitting suspended for a Division in the House.

On resuming—

Sandra Gidley: Before the Division, I pointed out that although it is important to take into account the efficient use of resources and the equitable distribution of services, I was concerned that the clause had crept into a part of the Bill that deals with fundamental principles. It seems that proposed section (2C) has no place here. It refers to the Secretary of State, but I am not quite sure how responsibilities are cascaded down to the people whose work involves making everyday decisions.
For example, a mental health professional could be put in the position of thinking that, according to the principle in new subsection (2B)(e), he must give the most effective treatment, but, as the legislation states that he is allowed to take resources into account, he could give the cheaper drug. I am sure—or at least I would hope—that that is not the intention of the legislation, and I hope that it will not be a consequence of the clause. I seek the Minister’s reassurance that use of resources will not be used to hamper, as it were, the freedom of health professionals to prescribe or provide the treatment that is in the best interests of the patient. If the unforeseen consequence that I have described could arise, that would go against every code of professional ethics under the sun, so I should like the Minister’s reassurance on that point.

Hywel Williams: Following on from your earlier ruling, Lady Winterton, I thought that I would make some stand part-type remarks, as well as refer to the amendment, on the issue of principles.
Mental health services are beset by stigma, fear, prejudice and uncertainty. Principles can be a forceful and important signal, setting out ethical standards and thereby improving people’s confidence in the operation of the law. Having been a member of the Joint Committee, I am of course disappointed that the principles appear in the code of practice. I understand the Government’s rationale for that, but we had some interesting discussions in the Joint Committee about whether the principles should be in the code of practice or in the Bill.
My preference would have been for us to follow, if possible, the Mental Health (Care and Treatment) (Scotland) Act 2003, which I briefly looked at before this debate. I draw the Committee’s attention to the fact that the phrase used by the Scottish Act in respect of the principles is “must have regard to”. Proposed new section 118(2A) of the 1983 Act, in clause 10, talks about
“the principles which the Secretary of State thinks should inform decisions under this Act.”
I understand why that wording has been chosen, but it is of a slightly different order to “must have regard to”.
 I should also like to draw the Committee’s attention to the fact that there are other pieces of legislation that include principles. I have some experience of the Children Act 1989, which sets out long lists of principles to which people must pay due regard before, for example, taking children into care. One of the things listed is language, which is a particular interest of mine and to which I might refer later in the Committee’s proceedings, although not today. To refer to the point that the Minister made a number of times, as a former social worker, I never felt that having principles set out was in any way patronising to me, and I do not think that my colleagues did either.
I understand the rationale for putting the principles in the code of practice, but I have a number of concerns to which I would like to refer briefly. When we discussed the matter in the Joint Committee, the Minister said that the fundamental guiding principles might need to be changed over time and that that would be easier if they were part of the code of practice. I would like to know what mechanism would be used to change the fundamental principles over time. In some ways, if principles are fundamental, they do not necessarily need to be changed.
I also am concerned that if changing the principles is a matter of changing a code of practice rather than legislation, they might be changed without sufficient parliamentary scrutiny. If times or commissions were changing, that would very much be an argument in favour of proper scrutiny, rather than saying that we should just be changing the code of practice, in a slightly less formal way.
My next point is a basic one. As I said in an earlier intervention, what legal protection does the statement in the code of practice afford to service users and practitioners? If it is not in the Bill, there is a question about that issue. To use a phrase that has already been used in this Committee, I am worried about that creating a field day for lawyers, as there could be many legal challenges.
As far as amendment No. 66 is concerned, I am the MP who represents Shaun and Josie Russell. I will say nothing about that particular case other than that they have demonstrated a quiet dignity and have rebuilt their lives. However, that is the perspective that I have on this issue. I worry about what will happen to other victims and the bereaved relatives of other victims. At the very least, would it be possible to make available to victims and their families dates of release or any conditions attached to release? That information could also be made available to practitioners. I am a former approved social worker and can still remember the brush of a poker passing my nose when I was involved in a particular sectioning, of which I am often reminded. I have subsequently seen the person who was sectioned and she is well and living a happy life. Fortunately, she cannot remember that particular incident, but as a practitioner it often comes back to me. I draw the attention of the Committee to the fact that social workers have been murdered in the past in the course of sectioning and we must be aware of the problems that they experience.
 On amendment No. 41, people from the black and minority ethnic community have good reason to suspect that they might unintentionally, or perhaps intentionally—although hopefully not—face differential treatment. It is reasonable to provide positive reassurance that their needs have been fully taken into account.

Ann Winterton: This has been a wide-ranging and thoughtful debate about the issue of principles. We all agree that it is important that people who make serious decisions about whether to deprive a person of their liberty should be guided by a common set of overarching ideas.
I will clarify the issues relating to the previous Bills. The hon. Member for East Worthing and Shoreham referred to the pre-legislative scrutiny Committee and the fact that I appeared before it. It is true that principles were not part of the Bill, but having looked at the recommendations of the Committee, I said that I would consider whether it was possible to put principles in the Bill. I stress that there has never been an objection to that; it has been a question of trying to do it without upsetting the balance of the existing Act. As I say, I closely considered all the issues and tried to look at whether we could address the matter in the draft Bill, which would have been easier.
 The hon. Gentleman also said that I referred to disapplication of principles. I wish to clarify the actual situation. Every discrimination code has exceptions and complicated details, including in respect of the Race Relations Act 1976, and that also extends to the issue of immigration. The right principle here is the avoidance of unlawful discrimination. When I referred to disapplication of principles, I was trying to say that, under existing legislation, it is possible to do that.
I considered very carefully whether we could put principle in the Bill, but I want to share with the Committee one of the issues that came to light when considering how to do that. When deciding what medical treatment to give to a patient, a practitioner must consider, among other things, the principles of the patient’s past and present wishes and feelings, and also the effectiveness of treatment. If the principles were in the 1983 Act, they would be given equal weight. That begs the question: what if the most effective treatment were anti-psychotic injection, but the patient did not like the side effects and wanted to try a slightly less effective treatment with minimal side effects? What would take precedence? Would it be the patient’s wishes and feelings, or the effectiveness of the treatment?
By referring to the code and having the principles set out in them, we can give guidance on how the practitioner could weigh the two conflicting principles. For example, the code might say that the decision should rest on a risk assessment, and that as long as the practitioner is content that the patient or public would not be at excessive risk if an alternative treatment option were tried, the effectiveness of the treatment could take a lower priority to the patient’s wishes and feelings. That is the sort of flexibility that we want.
Placing the principles in the 1983 Act fixes them in time. They cannot be changed in the light of changing practice or emerging issues without primary legislation. However, we can bring the code—the hon. Member for Caernarfon asked about this—back to the House and put it through the parliamentary procedure much more quickly than waiting for a Bill, which, as we know, may take some time—sometimes nine years.

Tim Loughton: So that we can maximise the debate on it at the appropriate time, will the Minister enlighten the Committee on how that might happen? Will it be by the affirmative resolution procedure, or another procedure?

Ann Winterton: It would be the negative resolution procedure—there would be a 12-week consultation period—but Members of Parliament could pray against it. To have maximum flexibility, the negative resolution procedure is an easier parliamentary procedure, as I am sure hon. Members appreciate. However, first there would be a 12-week consultation about any changes with the ability for input from here on in when drawing up the code, and if Members of Parliament wish to contribute to that we are more than happy to take on board their comments. We want to ensure that we make it as inclusive as possible.
I thank the Opposition for their support in understanding why we could not overcome some of the difficulties. As the hon. Member for East Worthing and Shoreham has quoted from the Lords, I shall do likewise and quote Lord Howe, who said that clause 10
“demonstrates to service users and professionals in mental healthcare that Parliament has put its imprint not only on the code, which is, of course, important, but also on the Act itself as regards the basic principles that should govern it and be read into it.”—[Official Report, House of Lords, 6 March 2007; Vol. 690,c. 120.]
I am grateful to the Opposition for being supportive on this difficult issue with which we have been wrestling.
I now want to address the amendments that have been tabled today. They would obviously introduce some new fundamental issues to the list that the Secretary of State and the Welsh Ministers must address when drawing up the list of principles in the code of practice: the assessment of risk, transparency, the needs of and impact of treatment on black and minority ethnic patients and the rights of victims. The amendments would also remove one fundamental issue—public safety—and the requirement that the Secretary of State and Welsh Ministers should have regard to the desirability of ensuring efficient use of resources and the equitable distribution of services.
I should probably start by discussing the amendment that would remove one of the fundamental issues that was agreed in the other place—public safety—and replace it with an assessment of risk. I am sympathetic to the point made by my hon. Friend the Member for Stafford. His speech was well considered and I know the concerns that he is trying to overcome. However, the problem of putting assessment of risk in that way is that it is not in itself a fundamental principle, buta procedure that is undertaken. We should be transparent about what we check for when carrying out that procedure; it is important that we are. All our discussions make it clear that an important part of that procedure is that we assess the safety of the patient and of the public, and it is therefore only transparent for those two issues to be fundamental matters.
Sometimes, I think, hon. Members feel a bit uncomfortable about public safety, but my hon. Friend the Member for Stafford made an important point yesterday, which was well illustrated. Even someone who is suicidal might, by committing that act, have an effect on public safety. It is important that we have at the forefront of our minds the fact that when we talk about risk in these circumstances we must consider the safety of the public. That can include carers and family members as well as strangers, and it is important that when we consider the individual and the difficult decisions that have to be made, we do not run away from the fact that public safety is an issue.
We have to recognise that some people and organisations would be worried. As my hon. Friend the Member for Bridgend said, we met yesterday with Victim’s Voice. If we were to remove one of the fundamental principles, that group would feel that we were not listening to some of its concerns or reflecting what is necessary in drawing up a risk assessment of the patient. That is why I cannot accept the amendment of my hon. Friend the Member for Stafford. I would also be unwilling to remove public safety from the list. 
 Transparency is one of the principles in the draft illustrative code for England, which we published when the Bill was first introduced in the other place. It is an important aspect of decision making, but it is a procedure that results from the other principles in the Bill.
 I want to address the point that my hon. Friend the Member for Bridgend made. As I said, we had a meeting yesterday with Victim’s Voice, and I have had meetings with the Zito Trust. I know that they feel strongly not only about public safety, but about information sharing, and my hon. Friend quite rightly put her finger on those issues. This is not the appropriate place to address the issues in principle, but I am happy to have further discussions with my hon. Friend about how we might take them forward.
I shall address the amendment that the hon. Member for East Worthing and Shoreham tabled on the issue of black and minority ethnic communities. It would add a fundamental requirement to address
“the particular needs and impact of treatment on black and minority ethnic patients.”
 Again, I absolutely understand that it is a worthy attempt to address concerns about the treatment of BMA patients. However, there is a fundamental issue regarding discrimination. The problem with the amendment is that it would go further and specify BMA patients as a group—

Tim Loughton: BME patients.

Ann Winterton: BME patients. I am so sorry; that was a Freudian slip.
The amendment would specify BME patients as a group in isolation from other groups that may be considered vulnerable. It would also treat BME patients as a homogeneous group and ignore other characteristics, such as age or gender, which might also need to be addressed. That is the basic problem with the hon. Gentleman’s amendment.
 Returning to the issue about the inclusion of principles in the Bill, quite honestly, owing to unlawful discrimination, it would not be appropriate to single out one particular group over another. The amendment would also make life difficult for practitioners. Although we want them to take into account a range of issues, whether they are issues of race, age, gender or sexual orientation, the amendment would cause us some difficulties if we had to highlight one issue above all others. A whole programme of work exists, and I hope to be able to reassure hon. Members at some point about the seriousness with which we take the issue. I am more than happy to explore the issue further—perhaps when time is slightly less pressing.
 I can also reassure hon. Members that there is nothing sinister about the wording of proposed subsection (2C). Clause 10 was drafted to include the fundamental matters considered most important in England and Wales. The Welsh national service framework for mental health has four underpinning principles: the so-called four Es of equality, equity, efficiency and effectiveness. When drafting the clause, we wanted to ensure that the Welsh principles were incorporated, given that the legislation covers England and Wales.
I hope that my explanation has reassured hon. Members. All the issues raised are of course extremely important, but I hope that I have made it clear why we cannot accept the amendments. However, we certainly need to consider the issue of the victims. With that, I hope that the Committee will reject the amendments.

David Kidney: I thank everyone who has taken part in the debate, which has been very useful and helpful. I accept my right hon. Friend the Minister’s explanation about the difficulty of trying to graft principles on to the 1983 Act using primary legislation. That subject is well discussed at page 27 of the Library’s research paper on the Bill, and is a genuine difficulty.
 I am less persuaded, however, by my right hon. Friend’s argument about the ability to amend legislation easily in the future, because the relevant matters could be dealt with in a schedule, and the Act could state that it may be amended by secondary legislation. If hon. Members read section 118(4) of the 1983 Act, they will find there the negative resolution that my right hon. Friend described for amending the code.
I appreciate what the hon. Member for East Worthing and Shoreham said about the purpose of his amendment in relation to black and minority ethnic patients being to impose not only a negative aspect, that there should not be discrimination, but a positive one, that diversity should be respected. [Interruption.] That is why I talked about a ringing declaration when I spoke to my amendment. I wanted to take account of the need to be positive. In the Mental Health Alliance’s briefing for Second Reading, it spoke about having principles on non-discrimination and respect for diversity, which are virtually the same thing. However, I point out that the principle about “respect for patients” principle in the draft code largely covers those points.
On the public protection point, there is a section on assessment in the code that deals with the assessment of risk and protecting others. Will my right hon. Friend consider whether the words “public safety” might be better replaced by the phrase “protection of others”, which was used in the 1983 Act? Changing those words might take away the lingering suspicion, which the hon. Member for Romsey expressed again in this debate, that the measure is about social control rather than health treatment.
I recognise that we are making a difficult decision and that there is a need for flexibility. With those comments, and given that some of these issues could be considered again, although not in the same way, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Tim Loughton: Lady Winterton, the Minister got very agitated earlier, as she does occasionally, about our discussions on clause 6 and the responsible medical practitioner. She kept referring to amendment No. 56, which you very generously did not call out of order, Lady Winterton, although that amendment has not been selected for discussion. I did not intend to move it, even it had been selected, because it was superseded by amendment No. 60, which refers explicitly to the “responsible clinician” in any place. We hope that the Minister will look warmly on that amendment when we debate it in relation to this clause.
 We think that amendment No. 60 would make clause 11 rather more acceptable, and I cannot see that the Minister can have any objection to it if she thinks that the term “responsible clinician” satisfies the Winterwerp v. The Netherlands test. Our concern is only that the measure should be legally in order and should not be challengeable under the law of the European Court of Human Rights. If she is confident of that, perhaps she will say that the Government will underwrite the costs of any legal challenge if it turns out that her definition of the responsible clinician falls foul of the European Court of Human Rights and that all the sectioning orders are therefore ruled null and void.

Ann Winterton: Order. I would be grateful if the hon. Gentleman would move amendment No. 60 formally if he wishes to press it to a Division.

Clause 11

Amendments to Part 2 of 1983 Act

Amendment proposed: No. 60, in clause 11, page 7, line 10, at end insert—
‘(11) After that subsection, insert—
“( ) No person can act as a responsible clinician unless he is capable of providing objective medical expertise of mental disorder.
( ) Objective medical expertise of mental disorder shall have the same meaning as in Winterwerp v The Netherlands (1979-80) 2 EHRR 387.”’.—[Tim Loughton.]

The Committee divided: Ayes 7, Noes 11.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Ann Winterton: The hon. Gentleman’s explanation is a nice try, but it rather exposes the real view—a non-belief in the role of the responsible clinician, given that the effect of his later amendment would be to destroy clause 11 completely and take it out of the Bill.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clauses 12 and 13 ordered to stand part of the Bill.
Further consideration adjourned.—[Claire Ward.]

Adjourned accordingly at four minutes pastSeven o’clock till Tuesday 8 May at half-past Ten o’clock.